Qualified Immunity

Summary

The Senate’s Reform-Shift-Build Act would adjust the concept of qualified immunity in civil rights law suits brought in state court to allow the evaluation of whether conduct was reasonable, even in novel cases where the law is not “clearly-established.”

Because no changes are being made in underlying liability or indemnification, police officers will experience little change in their exposure to law suits on a day-to-day basis. However, the changes will facilitate the evolution of constitutional law to address novel situations.

Excessive force cases are governed by the Fourth Amendment to the Constitution, which protects people from “unreasonable” seizures. 

The Supreme Court has made clear that “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.”

Diminishing “qualified immunity” will not diminish that fundamental legal deference to the challenge of policing on the streets. 

Where “qualified immunity” makes a difference is in the novel case – officer conduct that the courts have never ruled on before.  Qualified immunity requires that the legal prohibition on the challenged conduct be “clearly established” in order for a lawsuit to proceed.  Sometimes novel cases involve outrageous conduct, yet they are dismissed based on qualified immunity without reaching the question of reasonableness. 

Essentially, the senate’s changes would require that a court at least evaluate the reasonableness of the force use.   Dismissal based on lack of “clearly established” law means that the court never actually establishes whether the conduct was reasonable. Sometimes repetitive abusive conduct goes unremedied, because each time it is brought forward in a law suit, the courts throw it out because they haven’t ruled on whether it is reasonable, creating a “Catch-22.” 

Excessive use of force by police usually breaks clearly established law.  Since the changes in qualified immunity would affect only novel cases, the changes will affect few police violence cases.  A rigorous study of qualified immunity motions in over 1000 federal civil rights cases found that it resulted in dismissal before trial in only 3.2% of cases.

If our changes to qualified immunity and other changes to the Massachusetts civil rights statute become law, our expectation is that they may result in a shift of some lawsuits from federal court to state court, but that the overall volume of litigation and the resulting financial burden will change only modestly.  The few truly novel cases that now escape justice will be properly addressed.

The modest increase in financial burden, if it occurs, will not fall on officers. Agencies who employ law enforcement officers indemnify the officers for judgments entered against them, except in the most egregious cases.

The changes only apply to civil rights law suits.  Nothing is changing for the common tort law suits which an officer may be subjected to as a result of automobile or other accidents.

Overview

This post explains the changes to the concept of “qualified immunity” that would be made by the Senate’s Reform-Shift-Build Act. For a conceptual overview of the Act as a whole, please see this page. The qualified immunity changes are responsible and overdue.

To properly understand the qualified immunity changes, it is necessary to understand how the changes fit into the larger context of police liability for excessive use of force. This post explains that context at three levels: (a) the underlying liability for excessive use of force; (b) the court process in excessive use of force law suits (where the qualified immunity doctrine allows certain early motions); (c) the indemnification rules which protect individual police officers from financial ruin even if they lose a lawsuit.

Because no changes are being made in underlying liability or indemnification, police officers will experience little change in their exposure to law suits on a day-to-day basis. However, the changes in the qualified immunity rules will facilitate the evolution of constitutional law to address novel situations.

Underlying Liability

Excessive use of force as a deprivation of constitutional rights

The Fourth Amendment of the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . .

Constitution Annotated.

The Supreme Court of the United States has made clear that the Fourth Amendment limits police use of force in arrests to reasonable force. It is worth quoting Graham vs. Connor, 490 U.S. 386 (1989) at length because it explains how (a) the courts recognize the difficult challenges police officers face in the streets and (b) the courts sharply limit the exposure of police officers to liability. The doctrine of qualified immunity adds little to those underlying limits of liability.

In Graham vs. Connor, police officers treated with apparently unnecessary roughness an African-American diabetic who was experiencing a low blood sugar condition. The court used the case to define the “objective reasonableness” analysis to be used in excessive force cases:

[A]ll claims that law enforcement officers have used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other “seizure” of a free citizen should be analyzed under the Fourth Amendment and its “reasonableness” standard, . . . .

The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. . . . Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation. . . .

[T]he “reasonableness” inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. . . . An officer’s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer’s good intentions make an objectively unreasonable use of force constitutional.

Graham vs. Connor, 490 U.S. 386, 395-397 (1989) [internal quotations and citations omitted]

The standard defined in Graham vs. Connor has been broadly applied to exonerate police officers accused of excessive use of force. For example, the Department of Justice applied the analysis from Graham vs. Connor to exonerate Darren Wilson, the police officer who shot Michael Brown in Ferguson Missouri. DOJ discussed Graham vs. Connor and concluded that

“the evidence does not establish that the shots fired by Wilson were objectively unreasonable under federal law.”

Department of Justice Report Regarding the Criminal Investigation into the Shooting Death of Michael Brown by Ferguson, Missouri Police Officer Darren Wilson at page 10.

These principles for evaluation of the decision-making of police officers in applying force will not be altered by the limitations on qualified immunity proposed by the Reform-Shift-Build Act.

Civil liability for deprivation of constitutional rights

After the Civil War, the federal government struggled to impose order on the southern states and to protect the rights of freed slaves as citizens. In 1871, congress passed a law to create civil monetary liability of officials who violate the rights of people.

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, . . .

42. U.S. Code s. 1983 (originally enacted by the civil rights act of April 20, 1871, “An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for other Purposes.”). See also predecessor civil rights act of April 9, 1866, An Act to protect all Persons in the United States in their Civil Rights and furn the Means of their Vindication. The earlier act enforced criminal penalties for deprivations of rights “under color of law”.

This provision was at some points referred to as the “Ku Klux Act”, but is most commonly known by its modern statutory section number, §1983. The Supreme Court reviewed the legislative history of the act and made clear in Munroe v. Pape, 365 U.S. 167 (1961) that §1983 liability applies not only to deprivations of rights pursuant to wrongful laws, but to deprivations of rights by persons clothed with the authority of law, for example, police officers.

Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken ‘under color of’ state law.

Munroe v. Pape, 365 U.S. 167, 184 (1961) [citations omitted]

Over the decades since Munroe v. Pape, §1983 has become the primary tool for plaintiffs seeking damages for excessive force by police officers. 42 U.S. Code §1988 allows for the recovery of attorneys fees by a prevailing plaintiff under §1983.

Massachusetts has put in place a state analog to §1983 which also provides for the recovery of attorneys fees in cases of civil rights violations. Chapter 12, Section 11H of the General Laws empowers the Attorney General to seek injunctive relief

[w]henever any person or persons, whether or not acting under color of law, interfere by threats, intimidation or coercion, or attempt to interfere by threats, intimidation or coercion, with the exercise or enjoyment by any other person or persons of rights secured by the constitution or laws of the United States, or of rights secured by the constitution or laws of the commonwealth . . ..

G.L. c. 12, s. 11H.

Chapter 12, Section 11I allows private parties to recover damages in the same circumstances.

Any person whose exercise or enjoyment of rights secured by the constitution or laws of the United States, or of rights secured by the constitution or laws of the commonwealth, has been interfered with, or attempted to be interfered with, as described in section 11H, may institute and prosecute in his own name and on his own behalf a civil action for injunctive and other appropriate equitable relief as provided for in said section, including the award of compensatory money damages. Any aggrieved person or persons who prevail in an action authorized by this section shall be entitled to an award of the costs of the litigation and reasonable attorneys’ fees in an amount to be fixed by the court.

Through its reference to Section 11H, Section 11I includes as a predicate for recovering damages that the interference with rights occurred “by threats, intimidation or coercion”. Those words are absent in §1983. In Massachusetts, they have been interpreted to require that the coercion be used as a means towards a further purpose of deprivation of rights, as opposed to being the deprivation of rights in itself.

Conduct, even unlawful conduct, however, lacks [threats, intimidation or coercion] when all it does is take someone’s rights away directly.

Longval vs. Commissioner of Correction, 404 Mass 325, 334 (1989)

This interpretation has rendered the Massachusetts Civil Rights Act of little use to plaintiffs in police excessive force cases. One important change made by the proposed Reform-Shift-Build Act in Section 10 (lines 419-429) is to add a new provision to the Massachusetts Civil Rights Act allowing recovery for rights violations without a showing of threats, intimidation or coercion. This will make the state courts a more viable alternative to the federal courts in excessive use of force cases.

Qualified Immunity in Civil Rights Actions

The modern doctrine of qualified immunity was announced in Harlow v. Fitzgerald, 457 U.S. 800 (1982). The case involved the wrongful dismissal of a whistleblower by aides to former President Nixon. The question was the immunity of the aides. The court found that the aides were not absolutely immune from suit but allowed them a qualified immunity and used the case to define the principle of qualified immunity in general terms:

[G]overnment officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)

In defining this standard, the court sought to balance considerations of justice for plaintiffs with the social costs of excessive lawsuits:

These social costs include the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office. Finally, there is the danger that fear of being sued will dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties.

Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982) [citations omitted]

The court contemplated that early in the litigation process, on a motion to dismiss or motion for summary judgment a defendant could secure a finding of the defense of qualified immunity. On that motion,

the judge appropriately may determine not only the currently applicable law, but whether that law was clearly established at the time an action occurred. If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to “know” that the law forbade conduct not previously identified as unlawful. Until this threshold immunity question is resolved, discovery should not be allowed.

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)

Discovery is the costly and time-intensive exchange of documents and taking of depositions. By foreclosing discovery pending a motion for qualified immunity,the court intended to minimize the cost of improbable law suits. By requiring that applicable law be “clearly established” in order to defeat qualified immunity, the court sought the early termination of law suits on nebulous or novel legal theories. In so doing, it did not provide any new immunity against law suits where the applicable law is clear.

Where an official could be expected to know that certain conduct would violate statutory or constitutional rights, he should be made to hesitate; and a person who suffers injury caused by such conduct may have a cause of action.

Harlow v. Fitzgerald, 457 U.S. 800, 819(1982)

The Massachusetts Supreme Judicial Court has determined that the legislature intended that the federal concept of qualified immunity should apply to cases brought under the Massachusetts Civil Rights Act and has followed the concepts of Harlow v. Fitzgerald in providing that immunity:

The Legislature, in enacting the SCRA, intended to adopt the standard of immunity for public officials developed under 42 U.S.C. Section 1983 (1988). Duarte v. Healy, 405 Mass. 43 , 46 (1989). The United States Supreme Court has held that most public officials who exercise discretionary functions are entitled to qualified immunity from liability for damages under Section 1983. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The Court in Harlow concluded that “government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. The Court explained that qualified immunity is a necessary compromise between the need to provide remedies to individuals whose constitutional rights have been violated and the necessity of protecting public officials from “[i]nsubstantial lawsuits” which may deter them from carrying out their official responsibilities. [citations omitted]

Rodriques v. Furtado, 410 Mass 878, 881-2 (1991)

A recent case from the federal first circuit of appeals explained the qualified immunity framework. Castagna et al. v. Jean et al., 1st Cir, (Case 19-1677, April 1, 2020, unpublished. The first question in considering a motion for dismissal on grounds of qualified immunity is whether a right was actually violated. This question would necessarily be raised even without reference to the doctrine of qualified immunity. The second question is whether the law defining the right and making the conduct unlawful is “clearly established”. This is the special question when a qualified immunity defense is raised in a §1983 action.

The clearly established inquiry . . . has two elements. The first is focused on whether the law was sufficiently clear such that every reasonable official would understand that what he is doing is unlawful. Qualified immunity is supposed to protect all but the plainly incompetent or those who knowingly violate the law. Because of that, the right that was allegedly violated must be defined in a particularized sense so that the contours of the right are clear to a reasonable official. Existing precedent must have placed the statutory or constitutional question beyond debate. [A] defendant is entitled to qualified immunity where it is at least arguable that the defendant’s actions were constitutional, and where there was no controlling authority or even a consensus of cases of persuasive authority.

The second element focuses on the objective legal reasonableness of an official’s acts and evidence concerning the defendant’s subjective intent is simply irrelevant. This element provides some breathing room for a police officer even if he has made a mistake (albeit a reasonable one) about the lawfulness of his conduct.

Castagna et al. v. Jean et al., 1st Cir, (Case 19-1677, April 1, 2020, unpublished) [internal citations, quotations and alternation marks omitted].

The second element of the “clearly established” prong defined by Castagna is redundant since excessive force cases are always judged by “objective reasonableness” which is hard to distinguish in practice from “legal reasonableness”. At least in the context of a police use of force case, the main effect of qualified immunity is to allow dismissal on the first element of the “clearly established” prong: “Existing precedent must have placed the statutory or constitutional question beyond debate.”

Critics of the doctrine of qualified immunity believe that this standard has resulted in too many valid cases in which a violation of rights would be found being dismissed at an early stage.

In short, qualified immunity is an unjust, unnecessary, and unlawful doctrine that the Supreme Court simply made up out of whole cloth. The special safeguard it grants to government defendants is flatly at odds with the plain language of Section 1983 and unsupported by the relevant legal history. Its main practical effects are to deny justice to victims whose rights are violated and to undermine accountability for public officials—especially in law enforcement.

Unlawful Shield, A Cato Institute Website Dedicated to Abolishing Qualified Immunity

An alternative criticism of the doctrine suggests that it fails entirely in its purpose to reduce the volume of discovery in civil rights cases. A recent study of 1,183 §1983 cases showed that qualified immunity motions rarely result in the disposal of the case.

In recent years, the Supreme Court has described the driving force behind creation of the qualified immunity doctrine to be resolving insubstantial claims’ against government officials prior to discovery. But qualified immunity resulted in the dismissal of just 0.6% of the cases in my dataset before discovery, and resulted in the dismissal of just 3.2% of the 1,183 cases in my dataset before trial.

How Qualified Immunity Fails, Joanna C. Schwartz, Yale Law Journal 127:2 (2017) at page 60.

The small minority of the cases in which a dismissal occurs include those in which the violations are based on a set of facts that the courts have not had the opportunity to opine on and find unconstitutional. By allowing dismissal on the finding that the law is not clearly established, courts avoid applying the law to the novel facts and making determinations as to whether they violate the constitution. This creates a constitutional Catch-22 that can allow repeated violations to go unaddressed by the courts.

The Reform-Shift-Build’s Act Approach to Qualified Immunity

The senate has recognized the the following points apparent from the above discussion:

  • Qualified immunity aside, officers are protected from unreasonable lawsuits by the fundamental contours of fourth amendment law.
  • Qualified immunity does not actually prevent much waste motion in litigation.
  • Qualified immunity is a confusing doctrine that creates a constitutional Catch-22 that prevents the necessary evolution of constitutional law.

Section 10 of the Senate’s Reform-Shift-Build Act provides as follows (relating to claims under the Massachusetts Civil Rights Act):

In an action for monetary damages under this section,

qualified immunity shall not apply unless

no reasonable defendant could have had reason to believe that

such conduct would violate the law at the time the conduct occurred.

Section 10 as modified by amendment 121 [lines separated for clarity]

This language is slightly confusing. It provides for qualified immunity when “no reasonable defendant could have had reason to believe that such conduct would violate the law”. This equates roughly to not having qualified immunity when “a reasonable defendant would believe that such conduct would violate the law.” This construct is extremely close to existing law in excessive force cases — it still would allow early dismissal upon a showing of objective reasonableness. The only change is that it omits the alternative lower bar for early dismissal — that existing law does not include a “clearly established” prohibition on the conduct. This will remove the Catch-22 created by that requirement in cases involving novel conduct, even when that conduct is unreasonable and likely unconstitutional.

Indemnification

Most municipalities and agencies who employ law enforcement officers have agreements with the law enforcement officers which provide that they will indemnify the officers for judgments entered against them, except in a few egregious kinds of cases. In fact, a nationwide study found that 99.98% of civil rights settlements and judgments resulting from police misconduct were paid by the employing agencies. Deborah Ramirez, a professor at Northeastern Law School, reports based on her survey of local plaintiffs’ attorneys, that police employers Massachusetts pay all or almost all of the settlements and judgments.

In fact, the general laws specifically authorize this common practice:

Public employers may indemnify public employees, and the commonwealth shall indemnify persons holding office under the constitution, from personal financial loss, all damages and expenses, including legal fees and costs, if any, in an amount not to exceed $1,000,000 arising out of any claim, action, award, compromise, settlement or judgment by reason of an intentional tort, or by reason of any act or omission which constitutes a violation of the civil rights of any person under any federal or state law, if such employee or official or holder of office under the constitution at the time of such intentional tort or such act or omission was acting within the scope of his official duties or employment. No such employee or official, other than a person holding office under the constitution acting within the scope of his official duties or employment, shall be indemnified under this section for violation of any such civil rights if he acted in a grossly negligent, willful or malicious manner.  . . .

G.L. c. 258, s.9

As to claims against state police officers, the commonwealth is affirmatively committed by statute to pay for the representation and any judgment against the officer.

If, in the event a suit is commenced against a member of the state police or an employee represented by state bargaining unit five, by reason of a claim for damages resulting from an alleged intentional tort or by reason of an alleged act or failure to act which constitutes a violation of the civil rights of any person under federal or state law, the commonwealth, at the request of the affected police officer, shall provide for the legal representation of said police officer.

The commonwealth shall indemnify members of the state police or an employee represented by state bargaining unit five, respectively, from all personal financial loss and expenses, including but not limited to legal fees and costs, if any, in an amount not to exceed one million dollars arising out of any claim, action, award, compromise, settlement or judgment resulting from any alleged intentional tort or by reason of an alleged act or failure to act which constitutes a violation of the civil rights of any person under federal or state law; provided, however, that this section shall apply only where such alleged intentional tort or alleged act or failure to act occurred within the scope of the official duties of such police officer.

No member of the state police or an employee represented by state bargaining unit five shall be indemnified for any violation of federal or state law if such member or employee acted in a wilful, wanton, or malicious manner.

G.L. 258, s.9A

The Senate’s Reform-Shift-Build Act makes no change as to indemnification.

Conclusion

The argument above has been that the change in qualified immunity proposed in the Senate’s Reform-Shift-Build Act will have only modest impact on the volume of judgments or the cost of litigation. Further, if it has any impact, and victims of excessive force are able to recover more damages, those damages will not come from the pockets of police officers, but from the coffers of their employing agencies. The main benefit of the change is that will support the evolution of constitutional law to handle new fact patterns.

Published by Will Brownsberger

Will Brownsberger is State Senator from the Second Suffolk and Middlesex District.

Join the Conversation

41 Comments

    1. After taking in a lot from the comments and the meeting, I would like second that this does not go far enough.

  1. Police officers should be held accountable for bad behavior and good officers should support this as it encourages better behavior. The public is demanding justice and accountability. It is well time to act.

  2. I fear that knowing that their employers will pay for
    public servants’ defense and liability (except in cases of
    clearly egregious behavior) will encourage them to feel
    entitled to mistreat suspects more than if they knew they’d
    be held personally liable.
    In practice, the scale seems to be tipped BADLY against
    civil rights of victims of police misconduct, when the perpetrator
    can always claim (as in “stand your ground”) that he felt threatened, an that there was reasonable doubt as to the danger posed by the victim (even when it turns out that he/she is unarmed, or mentally disturbed, deaf, etc.) and believes he/she is reaching for a weapon.
    We see this pattern repeated over and over. And it is an outrage.
    Transparency, at least , is called for. Victim’s families must be
    given access immediately (not wait months and years) to details
    of each confrontation.

  3. Indemnification is fundamentally problematic. How can a police officer be held accountable when, in the exceedingly rare case that comes to trial and the even rarer case in which an officer is found liable, the financial payment comes out of the pockets of those the police are supposed to be serving?

    It makes zero sense, except when one considers the role of unions and political donations in this unfair process.

    1. This is the core of the issue.

      A physician, a lawyer, a contractor who fails to live up to the standards of their professions are held personally liable. They must buy and pay for their own malpractice insurance, with rates determined by the number of prior claims.

      Police laugh as cities pay the jury awards. This is not acceptable.

      1. Perhaps a law can be proposed which bans municipalities from paying court judgments against police officers. To get it passed, the Commonwealth would likely need to establish an initial malpractice insurance fund to pay those claims–but in the long run, all additions to that fund must be paid out of the pockets of the officers.

      2. Steven a doctor or lawyer does not have a gun in hands of a thug staring at them. this bill has all the trial lawyers backed by the corrupt mass senate licking their chops. this law will make the morgan and morgan soklove law etc. licking their chops

  4. There is so much to process here.
    Without weighing in on this particular important issue just now, my first response to the problem of policing in our community and our country, is that we should be drastically shifting the focus to more training, community policing, engagement with the community; more hiring (especially in higher ranking officers) that reflects the racial, ethnic makeup of the people they serve. In the meantime, bringing more awareness to the voters about qualified immunity and other potential barriers to systemic change will be helpful but I fear that it will take much longer than instituting more immediate changes like training and hiring. Getting the unions on board will be key, the political winds are in favor of change right now and the unions cannot stand in the way. I’ve reached out to my union (SEIU 509) to voice my concerns over the blanket support that unions have provided to rogue police and I urge others to do the same.

  5. Thank you for explaining all the details of qualified immunity. Very informative. I do wish this reform bill included funding for expanding restorative justice to all police departments across the Commonwealth, to change how interactions between police officers and the public play out, by encouraging dialog and community healing. The 2018 criminal justice omnibus included language enabling restorative justice programs for all departments, but it fell short by not setting up an office to help with implementation or funding. I think Police Reform is more likely to occur with more diversion and restorative justice programs in place. But that will take funding, guidance, and support.

  6. The idea here should be to provide municipalities with democratic incentives to hire and retain the best Police Officers they can. As in other areas, pointing out the effect on taxes of not having adequately trained and motivated officers on the police force should help make the ethical point.

  7. The information presented makes a case for basically not much of a change to state law and when implemented unfortumately won’t move the pendulum to better policing. Licensing of police should lead to better policing and along with revised mandatory training standards would help even more.

  8. Thank you for writing this! I think it’s important that the language in Section 10 be preserved — it is one of the most vital reforms in the bill. I would also urge strengthening the use of force language in the bill, as the conditionalities in the tear gas, chokehold, and no-knock raid language risk abuse.

  9. I think a need a TL/DR version of this.

    What I do not understand is, how can a police officer defend excessive force based on “not knowing” that it is illegal? I mean, they are presumably *trained* on what force is legal. And the lying about what happened! They never seem to get called on that. That’s not happening “in the moment.”

    Kinda like getting Al Capone on tax evasion, why isn’t lying on a police report treated more seriously?

    Also: don’t they have training? Can we look at a uniform code of conduct, please?

    1. Agree! Except with the TL/DR. Will’s excellent explanation is only as lengthy as it needs to be for a topic this complex.

  10. This is a well drafted explanation of the issues surrounding what even lawyers understandably find to be a complicated area of the law. The proposed qualified immunity standard is unnecessarily confusing, presenting in effect a double negative. The judge, as opposed to a jury, decide the issue of whether a “reasonable” person in the defendant’s position (for instance, police training and experience give them a heightened awareness of the law) would have known that what they were doing violates a law or constitutional right. Usually, reasonableness is determined by a jury, unless the conduct is unquestionably unreasonable. Further, this often requires a determination of what happened, ie., whose version of the facts do you believe, which is classically left up to a jury. That probably explains why the dismissal rate at the “judge” stage might be low, since “what the cop did” is often a disputed fact.
    As for indemnification, is is hard to understand how a defendant is not at least “grossly negligent”, if “no reasonable person in their position would not have realized they were violating someone’s rights”, thus disqualifying the officer from indemnity. Eliminating “grossly negligent”, and making the minimum standard for disqualification “wanton” conduct, increases the coverage for the police. I’m okay with that, provided we increase the right to terminate officers whose conduct displays repeated violations of rights, whether “grossly negligent” or worse.

    1. Thanks Will for giving the link to the ‘conceptual view’. The only one I can really grasp. I missed the original invite and I’m so glad that Belmont built such a local community infrastructure embracing a modern and ever powerful citizenship.
      And of course for all aspect in this bill.

  11. Will, Thank you for this information. I agree that reforming “qualified immunity” is of limited utility. However, could it not be coupled with a ban on indemnification or, perhaps, more realistically, setting a ceiling on indemnification so that the perpetrators of the worst offences will still be personally responsible in part?

  12. Police should be held to the highest standard of accountability. Justice for all will only happen if we err on the side of too much prosecution of police wrong-doing than the outrageous situation we are living in. Local authority needs to be superseded by strong federal or state oversight or change won’t happen.

  13. Many people in these comments have made detailed and interesting points, so I’ll just cut to my main reaction. This bill seems like a waste of time for the Senate. Nothing in it to be against, really, but it doesn’t seem to move the goalpost in any meaningful way. I worry that its purpose for some lawmakers (not you) is to make it seem like the state legislature is trying to mollify people who are upset about excessive use of force and the lack of consequences without upsetting police or their unions. Obviously it’s a very complicated issue, but this bill seems to do basically nothing. On a side note, I worry that the question appears to be how *much* force is okay (with a push or a shove here or there being no big deal in one of the decisions) instead of when any physical force is needed/acceptable in the first place. Also, what kinds of resources and training would police need to be able to use other options effectively and in a way that reduces rather than increases risk to themselves.

  14. Thanks for this explanation, Will. It sounds like S.2800 Sec. 10 allows for recovery for rights violations w/o a showing of threats, … or coercion. It also allows novel conduct arguments w/ no past precedence. And it changes indemnification not at all.

    Is this basically it? If so, why are unions pressing so hard to remove this section?

  15. A change in the procedural law for civil rights lawsuits may be called for, if it allows the law to develop. The basic issue is that the Constitution calls for police officer conduct to be “reasonable” without elaboration. The myriad real life situations police officers find themselves facing during their duties, coupled with the differing sizes, shapes, ages, and abilities of even properly trained police officers, means that what is “reasonable” is quite fact-dependent. Broadly applicable take-away rules may be difficult to establish. But the courts should do so carefully, even as in criminal cases courts, in decision after decision, establish whether police arrests or searches are “reasonable” — that is supported by the reasonability test of “probable cause.” If qualified immunity shields not just unknowing police officer from liability, but the law itself from developing protections for citizens, it is reasonable to address this problem.

    Those who wish police officers to pay their own way when it comes to liability — based on the model of a surgeon purchasing malpractice insurance — should generally keep in mind these differences between health care and policing: The patient is rarely moving during surgery, much less actively fighting it, and neither the surgeon nor any other person is in any danger of injury or death by a patient’s actions. Also, to the extent a treating physician in an emergency setting deals with a conscious and resisting patient, the physician calls upon others in the hospital to restrain the patient and protect him or her, care staff first, security second, and then police officers if the patient’s conduct becomes uncontrollably dangerous.

  16. Will,
    Thanks for the excellent report on the genesis and evolution of the qualified immunity standard. The constraints on changing the standard are real and I support the change in the Senate Bill. Other reforms don’t face the same constitutional and statutory constraints and should be pursued vigorously-as I’m sure you will. I hope the House also gets on
    board.

  17. I would like police reform to include Section 10, tear gas being banned, as well as choke holds, and no-knock raids.

    1. you must be in favor of that drug thug that put the new york policeman in a chokehold yesterday and the officer could not respond how about we take away the immunity for our elected officials who are far more likely to commit crimes than police officers didnt our last 3 speakers of the house end up in jail?

  18. The changes proposed here do not go nearly far enough toward eliminating the damage that qualified immunity for police officers does to justice in this country. Will, I am surprised and disappointed that you support this disappointingly weak tea.

  19. Many of the circumstances in which the qualified immunity doctrine is invoked are circumstances which were created by the police officer invoking the doctrine. These are circumstances in which the officer behaved unreasonably, unnecessarily escalating a situation, before the specific about which the qualified immunity defense is being invoked. This simply should not be allowed. A police officer should not be allowed to use qualified immunity to shield themselves from the consequences of their actions in a situation they themselves created through unreasonable conduct.

    The judge or jury should be required to consider the reasonableness of officers’ entire conduct from the start of the encounter, not just the reasonableness of the specific act about which they are trying to invoke qualified immunity.

    A change in the law such as this would be truly progressive and would deter bad conduct by bad officers without preventing good officers from doing their jobs properly.

  20. No one should have immunity, “qualified” or whatever, for beating the crap out of someone whose crime was most likely “contempt of cop”. There are way too many cases of unarmed people being abused to the point of being murdered under color of law. The more egregious ones that result in lawsuits end up with any fines being paid by the municipality, i.e. the taxpayers who are also paying the abusers salary. Since their is no accountability/cost to the offending officer it’s easy to see why they become repeat offenders.
    Perhaps if they lost their jobs and pensions for outrageous behavior these incidents would be greatly curtailed.

  21. Thank you for the explanations Will. Yet the reports in the press about opposition to this police reform bill focus on “qualified immunity” with language such as, “The president of the state’s largest police union said he “strongly opposes” the removal of qualified immunity, which he called “basic protections.” But if I understand what you are saying this bill does NOT remove this immunity. Is this an example of the slippery slope argument (e.g. that putting restrictions on access to machine guns or grenade launchers is the beginning of the end for the 2nd Amendment), namely that this bill if enacted will somehow inevitably lead to the abolition of “qualified immunity”, it not now then in future? At the same time absent the possibility that police officers may in some cases be financially liable the impact of the reform may be as toothless as regulations which do not make individual executives personally liable for the crimes committed by the companies they manage as a result of the actions they take. And of course underlying this whole debate is the recognition that in too many situations actions and behavior towards members of the public of color are nevertheless considered reasonable, although they would likely be condemned as unreasonable if suffered by whites.

  22. Maybe it’s irrelevant, but regarding use of force, medical personnel in ERs deal with crazy/drunk/out of control people all the time, and manage to subdue them without guns. Why can’t cops?

  23. Senator,
    Have you found anything among these comments that merit revisiting the proposed legislation? Methinks there are some boundary conditions worth revisiting.
    One of particular interest is the idea that there is no consequence financially for police convicted of malpractice. I think there should be at a minimum a participation in the liability from malpractice, whether enveloped in the union agreement (with union and/or individual accoutability spelled out, and if appropriate, insurance for individual/union, funded by individual/union, for payment of convicted claims).
    Also, what about your surfaced catch-22: where precedent nor law is updated by the circumstance of a “newly litigated” legal proceeding? We need the ability to evolve precedent to enable accoutabilility where none previously existed.
    I respect the horribly complex work of police, however I do not abide the hiding behind all kinds of protection that enables those few bad apples to proceed without consequence — how does the legislation actually address this issue?
    Thank you for your consideration of my comments. I very much appreciate your work on this issue (set of issues). Thank you!

  24. I have to question if those in the Senate who are obstructing this bill are doing so in good faith. Here we our availing ourselves of the civil instruments used to right that which is wrong. Not violence. Not threats. And our cogent arguments are met with gameplay. It makes me question the morality of the gameplayers because the gameplay places the vested interests of the few over the needs and interests of the commonwealth, and isn’t that just the very definition of corruption? The system is broken. We know it. They know it. To ask for something more in line with the values that we place in our public servants’ hands and ask them to uphold those values is not a slight. It is a demonstration of respect because we know that our public servants are capable of meeting such a challenge. We want better for our society but we also want the public servants. George Floyd is dead and those Minneapolis officers are alive. What kind of life do they have now? How will they see themselves in a few years after all the grandstanders and showboaters go away? All three will have to live with that decision for a long time, and that is very sad. To keep police officers mired in a system that works detriment of some and the benefit of the few, is to have low expectations of them.

  25. Section 10 definitely needs to be kept as is. I wish the bill as a whole were stronger. My worry is that if it passes as is, many people will think the work is done. Of course, If it doesn’t pass, they’re likely to say that it pushed too far 🙁

    Thank you for the explanation and the webinar!

  26. Oh yikes, disappointing–I agree with other commenters that we need more drastic changes in both law and police culture in order to move toward just and equal treatment for people of color and especially Blacks. Please keep up the good work, Will, and resist calls to water down this piece of legislation. Moving in the right direction is better than not moving at all.

  27. Law enforcement, including for profit incarceration, goes far beyond the norms of a just and humane society. This bill merely tinkers around the edges of a problem that requires radical change. At least we are finally having a serious discussion.

    1. Agree. More is needed, and needed now. It’s too little, too late to “let the law evolve.” How many more people need to be injured or killed by someone who is supposed to “protect and serve” (btw, they are not legally bound to protect*) and how long for those cases to wind through court, before behavior changes?

      * a list (twitter thread) of court decisions saying police do not have a duty to protect you https://twitter.com/finchymonger/status/1269657096083197953?s=21

  28. Thank you for this explanation of qualified immunity and the upcoming bill – it is the first time I’ve really understood it.

  29. Thank you Will for explaining these issues that most people do not understand on what qualified immunity is or what reasonable force is. My only comment is instead of talking about these issues . People should get involved and join a department and make changes from within. police departments are looking to hire smart caring officers. Just talking about it changes nothing.

Leave a comment

Your email address will not be published. Required fields are marked *